Ben Roberts-Smith has agreed to cover some of the costs of media companies he unsuccessfully sued for defamation over war crime reports.
The Federal Court was told on Thursday the Victoria Cross recipient had agreed to pay the costs of Nine-owned publishers The Age and The Sydney Morning Herald plus those of The Canberra Times after having his cases against them thrown out earlier this month.
Nicholas Owens SC, representing the three news firms, said Mr Roberts-Smith also agreed to pay his clients’ indemnity costs after March 17, 2020.
But the former soldier is fighting suggestions he be stuck with additional costs before that date.
These types of orders are typically granted by the court in lawsuits that were frivolous, hopeless or doomed to fail.
Mr Owens said his clients were seeking these further costs from Mr Roberts-Smith for his “unreasonable, delinquent and dishonest” conduct in the proceedings and for suing over imputations he claimed were defamatory but which he knew to be true.
After almost five years since the cases were filed and a 110-day hearing, the legal bill is estimated to be more than $25 million for both Mr Roberts-Smith and media companies.
The three publishers are also seeking to recoup their expenses from Seven Network and Kerry Stokes’ private company Australian Capital Equity after the firms financially backed the former soldier via loan agreements.
It is not yet known how much the news organisations are seeking separately from the former-SAS Corporal and from his Stokes-backed financial supporters.
The agreements with Mr Roberts-Smith included terms that Seven and ACE’s lawyers could have “oversight and management” of the defamation lawsuits, Mr Owens said.
Seven loaned the war veteran funds until June 23, 2021 with ACE taking over the financial backing of the cases after that date.
Barrister Justin Williams SC, representing the two Stokes-backed firms, tried to set aside subpoenas issued to his clients seeking invoices regarding the times their lawyers attended court or discussed the defamation cases.
The documents sought could not be used to make a costs order because they did not show Seven or ACE directing or controlling the conduct of the lawsuits, Mr Williams said.
“All it indicates is that my clients were monitoring the proceedings and it’s understandable why they wished to do so,” he told the court.
Mr Owens disagreed, saying the court could infer the level of control from the number of times Seven’s lawyers were in court when all other evidence regarding the broadcaster was considered.
Justice Anthony Besanko reserved his decision.
A two-day hearing for the costs applications against Mr Roberts-Smith, Seven and ACE will start in the Federal Court on September 4.
On that date, Justice Besanko will also hear a bid by the Commonwealth to let the Office of the Special Investigator access evidence used in the civil lawsuits in its criminal investigations over alleged war crimes in Afghanistan.
This would ensure prior orders made by the judge to protect national security would not “frustrate or impair” the conduct of the ongoing investigations, said commonwealth barrister Joe Edwards.
In dismissing the defamation suits, Justice Besanko found a number of 2018 reports he engaged in war crimes, including his involvement in the unlawful killing of four unarmed prisoners in Afghanistan were substantially true.
Mr Roberts-Smith has until July 12 to file an appeal.
In November 2020, a report into alleged war crimes by special forces in Afghanistan was released finding credible evidence 39 civilians and prisoners were unlawfully killed by Australian troops while two others were subject to cruelty from 2007 to 2013.
Two years later, more than 40 alleged offences were under investigation.
Mr Roberts-Smith has not been charged and maintains his innocence.
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